Durney v Victoria University
[2013] VSC 280
•28 May 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2012 06363
| PAUL DURNEY | Plaintiff |
| v | |
| VICTORIA UNIVERSITY PROFESSOR PETER DAWKINS PROFESSOR GREGORY BAXTER | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2013 | |
DATE OF JUDGMENT: | 28 May 2013 | |
CASE MAY BE CITED AS: | Durney v Victoria University & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 280 | |
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ADMINISTRATIVE LAW – Judicial review- Applications in the nature of certiorari – Applications for injunctions – Multiple proceedings – Multiple applications for interlocutory relief – Unrepresented litigant – Repetitive and voluminous material - Trial management.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Ms P.C. Knowles | Minter Ellison |
HIS HONOUR:
Background
Paul Durney, the plaintiff, is a student enrolled in a law course at Victoria University. On 24 October 2012, Mr Durney was sent a letter dated 19 October 2012. The letter was written by Professor Peter Dawkins, the second defendant. The letter provided:
Dear Mr Durney
I have read and considered your communications of 21 September and 4 October 2012 which were in response to Professor Gregory Baxter’s letter to you of 29 August and my letter to you of 14 September 2012.
I note that your replies to me do not address the incidents which are of concern, and make no comment in relation to your own behaviour.
Recent behaviour
Since my last letter to you I have been alerted to the following further incidents:
·On 10 October 2012 you lay on the ground at the main entrance to the Victoria Law School on Little Lonsdale Street with a bag covering your head. Police and an ambulance attended and removed you. You returned later in the day and lay in the same position with a bag covering your head.
·On 16 October 2012 you attended at the Victoria Law School reception desk and then at the law library. You raised your voice at library staff and at another student. You then lay at the main entrance point to the Victoria Law School on Little Lonsdale Street with a cloth bag over your head and a noose around your neck, attached to the steel railings. Police attended and you were removed by ambulance.
Exclusion from Victoria University
I have regretfully come to the conclusion that, due to the impact of your behaviour on other members of the university community, it is necessary to exclude you from the University premises in order to maintain a safe environment for staff and other students.
Pursuant to Victoria University’s regulation 10.2, you are now excluded from being on, in or using any or all premises of Victoria University.
Arrangements for continuation of your studies
I understand that you are currently studying two subjects in the Faculty of Business and Law. In order to minimise the impact on your studies, a staff member from that Faculty will contact you in due course to make arrangements for you to sit your examinations.
In the meantime you continue to have access to WebCT, Lectopia and all the online resources of the Victoria Law Library. You also continue to have access to your lecturers and tutors via email.
Process for your return to university premises
I will consider revoking this exclusion at such time as I can be provided with some independent assurance that your behaviour does not pose a risk to staff and students, or indeed to yourself. This would need to take the form of a report from a medical practitioner, psychiatrist, or Forensic Psychologist of the university’s choice, at the university’s expense. When you are ready to commence this process, you may contact the Pro Vice-Chancellor (Academic & Students) via email … .
Assistance which is available to you
I once again entreat you to obtain professional assistance. I reiterate that Dr Darko Hajzler, the University’s Manager of Counselling Services is available to assist you … .
On 14 November 2012, the plaintiff commenced the present proceeding against the defendants. In paragraph one of the plaintiff’s originating motion, the plaintiff sought injunctions to restrain the defendants from:
(1) enforcing the exclusion by Prof Peter Dawkins dated 19 October 2012 (sent 24 October 2012);
(2) enforcing the restrictions on the enrolment of the Plaintiff imposed by Prof Gregory Baxter date 29 August 2012;
(3) taking any further action against the Plaintiff in relation to any of the claims outlined in restrictions document dated 29 August 2012;
(4) taking any further action against the Plaintiff in relation to any of the claims outlined in notice if [sic] intention to exclude dated 14 September 2012 or exclusion 19 October 2012;
(5) in relation to its dealings with the Plaintiff, acting otherwise that in accordance with the general law or legislation or statutes or policies of the university unless the consent of the Plaintiff has been sought and received.
At the same time he issued his originating motion, the plaintiff issued an application for interlocutory injunctive relief. The application for interlocutory relief was in the same form as the claim for relief in the originating motion.
The plaintiff’s application for interlocutory injunctive relief came on for hearing before Pagone J on 21 November 2012. After hearing the application, his Honour dismissed the plaintiff’s summons with costs and reserved liberty to apply.
On 20 December 2012, the plaintiff received a letter dated 19 December 2012 written by Professor Dawkins. The letter was headed “Statement of Reasons” and contained the following:
On 19 October 2012 I wrote to you advising you that I had made a decision pursuant to Regulation 10.2 of the Victoria University regulations to exclude you from the University premises.
I am informed that during the course of proceedings in the Supreme Court of Victoria on 21 November 2012, you requested, via your legal representative, a statement of the reasons for my decision that it was necessary to exclude you from the University premises in order to maintain a safe environment for staff and other students pursuant to Regulation 10.2 (the Exclusion Decision).
Professor Dawkins’ letter went on to set out what were said to be his reasons for the exclusion decision.
On 18 February 2013, the plaintiff issued another originating motion in relation to the matter (“the 2013 proceeding”).[1] However, on this occasion, only Victoria University and Professor Dawkins were named as defendants. The injunctive relief sought in the 2013 proceeding is in the following terms:
[1]S CI 2013 0801.
An injunction to restrain the defendants or their officers or servants from:
(a) enforcing the exclusion dated 19 October 2012;
(b) taking any further action against the Plaintiff in relation to the allegations outlined in:
(i) The ‘intention notice’ dated 14 September 2012;
(ii) The exclusion notice dated 19 October 2012;
(iii) The Statement of Reasons dated 19 December 2012.
(c) in relation to its dealings with the Plaintiff, acting otherwise that in accordance with the general law or legislation or statutes or policies of the university unless the consent of the Plaintiff has been sought and received.
On the same day as he issued his originating motion in the 2013 proceeding, the plaintiff applied by summons for interlocutory injunctive relief. The interlocutory injunctive relief sought was sought in the same terms as set out in the originating motion.
The plaintiff’s application for interlocutory injunctive relief was heard by me in the Practice Court on 14 March 2013. On that day, I dismissed the plaintiff’s application, giving the following reasons:
“The long history of this proceeding is set out in the voluminous affidavit material that has been filed and served. Identifying this material it is three affidavits of the plaintiff sworn 18 February 2013, 5 March 2013 and 12 March 2013 and on behalf of the defendant, an affidavit of Mr Oxley sworn 6 March 2013 and Ms Simpson sworn 12 March 2013.
I do not propose to repeat that history in the course of these reasons.
The plaintiff seeks an injunction restraining the defendants from enforcing an exclusion decision recorded in a letter dated 19 October 2012 and restraining the defendants from taking further action against the plaintiff in relation to applications contained in that document, an intention notice dated 14 September 2012 and a statement of reasons dated 19 December 2012.
While his summons, dated 18 February 2013, appears to seek declaratory relief on an interlocutory basis as well, it is clear that all the plaintiff seeks today is interlocutory injunctive relief restraining the defendants from excluding him from full access to Victoria University and its various facilities, lectures, services and buildings.
This is not the first time the plaintiff has made such an application.
In earlier proceedings number SCI 2012/06363, Pagone J, on 21 November 2012, dismissed a similar application for interlocutory injunctive relief.
Relevantly, all that has happened since Pagone J's decision on 21 November 2012 is that further time has elapsed, further documents have passed, the exclusion decision has remained operative and the statement of reasons to which I have referred, has been delivered.
The defendants resist the plaintiff's application today essentially on three grounds. First they say it is an abuse of process having regard to the dismissal of the relevantly identical application by Pagone J. Secondly, they say the material does not disclose a serious question to be tried. Thirdly, they say that the balance of convenience does not support the granting of interlocutory injunctive relief.
There is much to be said for the defendants’ abuse of process arguments. However, I do not find it necessary to determine the application on that ground.
The issues of serious question to be tried and balance of convenience are interrelated. In some cases the stronger the serious question to be tried, the less that need be shown in respect of balance of convenience. Conversely, in some cases, the weaker the serious question to be tried, the greater the need to show significant balance of convenience considerations.
In this case there may well be a serious question to be tried. However, on the material filed, I am unable to say that it has any particular strength.
Having regard to the fact that there will ultimately be a trial of this proceeding, it would not be appropriate for me so express any further view as to the strengths of the plaintiff's case.
Having read all of the material and having considered the plaintiff's submissions carefully, I regret to say that I am not persuaded that the balance of convenience favours the granting of interlocutory injunctive relief.
In essence, I accept the evidence produced on behalf of the defendants that the plaintiff's exclusion will not prevent him from enrolling in subjects, completing assessment tasks and exams and completing his tertiary studies.
The academic year has just commenced and the material discloses that the plaintiff may enrol without attending campus. The university has arranged for the plaintiff to access his course outlines, library resources and lecture material online. Further, the university will loan the plaintiff the core textbooks and his lecturers are aware of his circumstances. I regard these as important matters which I expect the university, consistently with its material, to honour.
Additionally, the material discloses that the university will make special provision for the plaintiff's assessment, and that the plaintiff's Austudy payments need not be affected.
When one weighs in the balance the occupational health and safety considerations referred to in the defendant's material, I am not persuaded, having regard to the strength of the plaintiff's case, that the balance of convenience favours the granting of interlocutory injunctive relief.
Accordingly, the plaintiff's summons filed 18 February 2013 seeking interlocutory injunctive relief will be dismissed.
Subject to hearing further argument as to timetabling, in my view this proceeding should be brought on as expeditiously as reasonably possible and I propose to make the following additional orders.
1.The plaintiff file and serve any further affidavits upon which he intends to rely by 4 pm 22 March 2013.
2.The defendants file and serve any further affidavits upon which they intend to rely by 4 pm 12 April 2013.
3.The plaintiff file and serve a written outline of submissions and list of authorities by 4 pm 26 April 2013.
4.The defendants file and serve a written outline of submissions and list of authorities by 4 pm 10 May 2013.
5.The plaintiff file and serve a written outline of submissions in reply and additions to the list of authorities by 4 pm 17 May 2013.
6.The defendants file and serve a court book in accordance with the Judicial Review and Appeals Practice Note no. 4 of 2009 and a combined book of authorities by 4 pm 31 May 2013.
7.The proceeding be referred to Associate Justice Daly in court 4 on Tuesday 4 June 2013 to be listed for trial with such priority as Her Honour can accord the matter.
Following the delivery of this judgment, the plaintiff, who up to that time had maintained that his proceedings and applications were urgent, said that as his application for interlocutory injunctive relief had been dismissed, there was no longer any relevant urgency in the matter. This submission was, at least, surprising given the plaintiff’s previous claims that the matter was urgent. However, the question of whether this submission disclosed an abuse of process on the part of the plaintiff was not debated before me.
In any event, after hearing further submissions, I made orders as follows:
1.The plaintiff’s application for interlocutory injunctive relief is dismissed.
2.The plaintiff file and serve any further affidavits upon which he intends to rely by 4 pm 5 April 2013.
3.The defendants file and serve any further affidavits upon which they intend to rely by 4 pm 26 April 2013.
4.The plaintiff file and serve a written outline of submissions and list of authorities by 4 pm 10 May 2013.
5.The defendants file and serve a written outline of submissions and list of authorities by 4 pm 24 May 2013.
6.The plaintiff file and serve a written outline of submissions in reply and additions to the list of authorities by 4 pm 31 May 2013.
7.The defendants file and serve a court book in accordance with the Judicial Review and Appeals Practice Note no 4 of 2009 and a combined book of authorities by 4 pm 14 June 2013.
8.The proceeding be referred to Associate Justice Daly in court 4 on Tuesday, 18 June 2013 to be listed for trial with such priority as Her Honour can accord the matter.
9.The plaintiff pay the defendant’s costs of and incidental to the plaintiff's application for interlocutory injunctive relief.
10.Liberty to apply.
By a summons filed 30 April 2013 in the present proceeding, the plaintiff seeks the following orders:
1.In relation to the order of Justice Pagone dated 21 November 2012 (proceeding No. S CI 2012 6363), that:
(a) except in relation to the interim injunction: and –
(b) to the extent that is necessary;
the order be set aside under Supreme Court (General Civil Procedure) Rules 2005 (Vic) Rule 46.08; and –
2.Directions as follows:
(a) That the proceeding SCI 2012 06363 be entered into the Judicial Review and Appeals List
(b) That the proceeding SCI 2012 06363 and SCI 2013 0801 be listed to be heard together;
(c) That the dates for the proceeding SCI 2013 0801 be extended and modified to accommodate the combined proceedings;
This is the hearing of the plaintiff’s summons filed 30 April 2013. In support of his application, the plaintiff relies upon affidavits sworn on 14 November 2012, 19 April 2013, 15 May 2013 and 27 May 2013.[2] Additionally, the plaintiff has filed (and relies upon) written submissions dated 15 May 2013.
[2]Although while paragraph 3 of the plaintiff’s written submissions dated 15 May 2013 refers to reliance being placed on the affidavits of 14 November 2012, 19 April 2013 and 15 May 2013, paragraph 5 of the plaintiff’s affidavit sworn 27 May 2013 says that that affidavit is only the plaintiff’s third affidavit in relation to the present application.
The application to set aside the order of Pagone J
In support of his application to set aside the order of Pagone J, the plaintiff relies upon r 46.08 of the Supreme Court (General Civil Procedure) Rules 2005. Rule 46.08 provides:
The court may set aside or vary an order which affects a person where the application for the order –
(a) was made on notice to that person, but the person did not attend the hearing of the application; or
(b) was not made on notice to that person.
The short answer to the plaintiff’s application to set aside any part of the order of Pagone J is that r 46.08 has no application in the present case. On 21 November 2012, Pagone J dismissed the plaintiff‘s application for interlocutory relief and ordered the plaintiff to pay the defendants’ costs of that application. The plaintiff was at all times represented by counsel, and the orders were made following the hearing of the plaintiff’s own application.
Paragraph one of the plaintiff’s summons filed 30 April 2013 must be dismissed.
Further directions
The plaintiff seeks orders entering the present proceeding into the Judicial Review and Appeals List; listing the present proceeding and the 2013 proceeding so that they be heard together; and extending the times in the existing timetable governing the 2013 proceeding.
It is not necessary to enter the present proceeding into the Judicial Review and Appeals List. Further, I am not persuaded that there is any issue in the present proceeding which cannot be determined at the trial of the 2013 proceeding.[3] There is, as I said on 14 March 2013, much to be said for the defendants’ arguments that having two proceedings covering the same material is an abuse of process. Nevertheless, and recognising that the plaintiff is unrepresented, the more efficient solution so far as trial management is concerned is to have this proceeding and the 2013 proceeding listed for hearing by the same judge at the same time. Accordingly, I will make an order that this proceeding be listed for trial to be heard together with the trial of the 2013 proceeding.
[3]This notwithstanding the fact that the plaintiff has chosen to sue three defendants in the present proceeding but has only sued the first two of these in the 2013 proceeding.
The plaintiff seeks an extension of the times provided for in the orders made in the 2013 proceeding. The extensions of time are sought on two bases: first, so as to allow additional time for the preparation of documents relevant to the issues raised in the present proceeding; and secondly, because the plaintiff is unrepresented and claims to be unable to cope with, or comply with, time limits that a fully qualified lawyer could cope with.
There is nothing in the first point: the issues in both proceedings are largely (if not completely) identical. If there is some issue that the plaintiff believes arise in the present proceeding then he may refer to it in the documents he files and serves in the 2013 proceeding. This is not a case where there should be further duplication of affidavits or submissions across both proceedings.
So far as the second point is concerned, given the plaintiff is unrepresented, I am prepared to grant him some further latitude[4] to enable him to comply with the orders that have already been made. In the circumstances, I am prepared to extend the times for compliance with the orders previously made in the 2013 proceeding as follows:[5]
[4]The plaintiff has already been granted indulgences in these proceedings. For example, the Court has relieved him of the obligation of compiling the court books and books of authorities that a plaintiff would normally have to prepare. Instead, this obligation has been imposed on the defendants (cf the Judicial Review and Appeals Practice Note No. 4 of 2009.
[5]Which orders will be made in the 2013 proceeding.
(1)The plaintiff file and serve any further affidavits upon which he intends to rely by 4.00pm 18 June 2013.
(2)The defendants file and serve any further affidavits upon which they intend to rely by 4.00pm 2 July 2013.
(3)The plaintiff file and serve a written outline of submissions in reply and additions to the list of authorities, together with any other submissions he wishes to make in respect of this proceeding and proceeding number S CI 2012 06363 by 4.00pm 23 July 2013.
(4)The defendants file and serve a Court Book in accordance with the Judicial Review and Appeals Practice Note No. 4 of 2009 and a combined book of authorities by 4.00pm 6 August 2013.
(5)The proceeding be referred to Associate Justice Daly in Court 4 on Tuesday 13 August 2013 to be listed for trial, and to be heard together with proceeding number S CI 2012 06363, with such priority as her Honour can accord both matters.
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